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2018 DIGILAW 575 (KAR)

Babasab Kutbuddin Nadaf v. State of Karnataka

2018-04-26

JOHN MICHAEL CUNHA

body2018
ORDER : 1. In this batch of petitions, the petitioners have sought to quash the criminal proceedings initiated against them for the alleged offences punishable under Sections 78(3) of the Karnataka Police Act, 1963 (‘the KP Act’, for short) on the ground of non-compliance of the mandatory requirements prescribed under Section 155(2) of the Code of Criminal Procedure. 2. (i) The common contentions urged in all these petitions are that, the offence alleged against the respective petitioners is a non-cognizable offence and by virtue of the safeguard provided under Section 155(2) of Cr.P.C., the respondent – Police could not have embarked upon investigation into the alleged offence, without the order of a Magistrate having power to try such case. (ii) In Support of this contention, the learned counsel has referred to the decisions of this Court in the case of Nabisab S/o Shek Imamsab V/s State of Karnataka (Crl.P.3365/2016 and connected matters disposed on 07.04.2017) as well as the other decisions rendered by this Court in the Case of Sharath @ Salim V/s The State of Karnataka (Crl.P.No.101833/2015 and connected petitions disposed on 18.12.2015), wherein this Court following the decision passed by this Court in batch of petitions in Crl.P.No.100319/2014 has held that non-compliance of the mandatory requirements under Section 155(2) of Cr.P.C. would render the proceedings illegal and invalid. (iii) The learned counsel has also produced a copy of the order passed by the Hon’ble Supreme Court of India in S.L.P.Nos.8567-8580/2016 arising out of the common order passed by this Court in Crl.P.No.100319/2014. The said S.L.P.Nos.8567-8580/2016 is dismissed by the Hon’ble Supreme Court of India, thereby confirming the orders passed by this Court in Crl.P.No.100319/2014. 3. In Crl.P.No.3365/2016 and connected matters, this Court followed the decision rendered by the Coordinate Bench of this Court in Moin Basha Kurnooli Vs. The State of Karnataka by Cowl Bazaar Police Station, Bellary, reported in 2014(4) KCCR 3355 , wherein on analysing the relevant provisions of the Code of Criminal Procedure and the Karnataka Police Act, 1963, it is held that the offence under Section 78(3) of the KP Act is a non-cognizable offence, the investigation whereof by a Police Officer is prohibited without prior order of the concerned Magistrate. Further this Court has laid down that the provisions of Section 155(2) of Cr.P.C. is mandatory in nature and failure to comply with the said mandatory requirement is an incurable defect amounting to illegality vitiating the entire proceedings. 4. In Praveen Basavanneppa Shivalli Vs. State of Karnataka and Others reported in 2017(1) AKR 461, this Court has laid down that a mere endorsement made by the Magistrate on the application submitted by the Police Officer under Section 155 of Cr.P.C. as “permitted” is not an “order” in the eye of law and on that ground also, the proceedings initiated against the accused are rendered illegal and are liable to be quashed. 5. Undisputedly, in all these proceedings, the FIR came to be registered against the petitioners on the basis of the complaint lodged by the Inspector of the Police of the respective police stations alleging that on receipt of credible information that the accused herein were involved in playing a game of chance by name Matka and were soliciting customers for the said purpose, the PSI of the respective police stations made an application to the concerned Magistrate seeking permission to investigate into the matter and thereafter rushed to the spot along with his team and the panchas and found the accused engaged in the alleged activities, and accordingly, panchanamas were drawn at the spot and incriminating materials were seized from the spot of occurrence and FIRs were registered against the respective accused persons alleging commission of offence punishable under Section 78(3) of KP Act. 6. The details of the cases registered against the petitioners, respective crime Nos. and the date of the FIR and the endorsement made by the concerned Magistrate on the application submitted by the complainant are detailed in the table herein below: Sl. No. Criminal Petition No. Crime No. & Police Station FIR date Endorsement CC No. & the Court 1 102152/2017 299/2015 Kudachi PS 24.11.2015 179/2016 Addl. JMFC, Raibag 2 102140/2017 174/2015 Kudachi PS 30.7.2015 “Permitted” 572/2005 Addl. JMFC, Raibag 3 102150/2017 78/2016 Kudachi PS 15.4.2016 “Permitted” 444/2016 Addl. JMFC, Raibag 4 102151/2017 135/2016 Kudachi PS 25.6.2016 “Ptted” 629/2016 Addl. JMFC, Raibag 5 102153/2017 293/2016 Kudachi PS 20.11.2015 “Permitted” 63/2016 Addl. JMFC, Raibag 6 102154/2017 11/2016 Kudachi PS 21.1.2016 “Permitted” 143/2016 Addl. JMFC, Raibag 7 102155/2017 116/2016 Kudachi PS 1.6.2016 “Ptted” 601/2016 Addl. JMFC, Raibag 8 102156/2017 114/2016 Kudachi PS 31.5.2016 “Ptted” 602/2016 Addl. JMFC, Raibag 4 102151/2017 135/2016 Kudachi PS 25.6.2016 “Ptted” 629/2016 Addl. JMFC, Raibag 5 102153/2017 293/2016 Kudachi PS 20.11.2015 “Permitted” 63/2016 Addl. JMFC, Raibag 6 102154/2017 11/2016 Kudachi PS 21.1.2016 “Permitted” 143/2016 Addl. JMFC, Raibag 7 102155/2017 116/2016 Kudachi PS 1.6.2016 “Ptted” 601/2016 Addl. JMFC, Raibag 8 102156/2017 114/2016 Kudachi PS 31.5.2016 “Ptted” 602/2016 Addl. JMFC, Raibag 9 102157/2017 145/2016 Kudachi PS 16.7.2016 “Ptted” 688/2016 Addl. JMFC, Raibag 10 102158/2017 177/2016 Kudachi PS 2.9.2016 “Ptted” 900/2016 Addl. JMFC, Raibag 11 102159/2017 210/2016 Kudachi PS 24.10.2016 “Permitted” 1051/2016 Addl. JMFC, Raibag 12 102160/2017 78/2017 Kudachi PS 12.5.2017 “Ptted” 585/2017 Addl. JMFC, Raibag 13 102161/2017 88/2017 Kudachi PS 22.5.2017 “Permitted” 586/2017 Addl. JMFC, Raibag 14 102177/2017 201/2015 Kudachi PS 17.8.2015 “Permitted” 575/2015 Addl. JMFC, Raibag 15 102178/2017 329/2015 14.12.2015 “Permitted” 926/2015 Addl. JMFC, Raibag 16 102179/2017 95/2016 5.5.2016 “Permitted” 620/2016 Addl. JMFC, Raibag 17 102180/2017 154/2016 12.8.2016 “Ptted” 786/2016 Addl. JMFC, Raibag 18 102181/2017 33/2017 3.3.2017 “Permitted” 245/2017 Addl. JMFC, Raibag 19 102182/2017 106/2017 5.7.2017 “Permitted” 823/2017 Addl. JMFC, Raibag 20 102183/2017 118/2017 17.7.2017 “Permitted” 830/2017 Addl. JMFC, Raibag 21 102184/2017 34/2017 3.3.2017 “Permitted” 246/2017 Addl. JMFC, Raibag 22 102185/2017 75/2015 15.4.2015 Order dtd. 16.4.15 369/2015 Addl. JMFC, Raibag 23 102186/2017 229/2015 3.9.2015 “Permitted” 633/2015 Addl. JMFC, Raibag 24 102187/2017 40/2016 5.2.2016 “Permitted” 177/2016 Addl. JMFC, Raibag 25 102188/2017 100/2016 7.5.2016 “Permitted” 450/2016 Addl. JMFC, Raibag 26 102189/2017 242/2016 Harugeri PS 21.10.2016 “Permitted” 961/2016 Addl. JMFC, Raibag 27 102190/2017 245/2016 Harugeri PS 24.10.2016 “Permitted” 969/2016 Addl. JMFC, Raibag 28 102191/2017 373/2013 Kudachi PS 28.12.2013 “No permission” 226/2014 Addl. JMFC, Raibag 29 102279/2017 69/2016 Harugeri PS 18.2.2016 “Permitted” 241/2016 Addl. JMFC, Raibag 30 102280/2017 179/2016 Aigali PS 3.10.2016 “Pertted” 1619/2016 I Addl. JMFC, Athani 31 102281/2017 207/2015 Kudachi PS 18.8.2015 “Permitted” 577/2015 Addl. JMFC, Raibag 32 100189/2018 11/2015 Kasabapeth P.S. 17.2.2015 2338/2015 JMFC II Court, Hubballi 7. Undeniably, the offence alleged in each of the above cases is a non-cognizable offence. Section 155 of the Cr.P.C. deals with the procedure of Investigation and cognizance of non-cognizable cases. It reads as under: “Section 155 Information as to non-cognizable cases and investigation of such cases. JMFC, Raibag 32 100189/2018 11/2015 Kasabapeth P.S. 17.2.2015 2338/2015 JMFC II Court, Hubballi 7. Undeniably, the offence alleged in each of the above cases is a non-cognizable offence. Section 155 of the Cr.P.C. deals with the procedure of Investigation and cognizance of non-cognizable cases. It reads as under: “Section 155 Information as to non-cognizable cases and investigation of such cases. (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.” 8. As per the above provision, when an Officer-in-charge of the police station received the information as to the commission of non-cognizable offence, (i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial. 9. In the instant case, the respondent police have utterly failed to comply with the requirements laid down in Section 155(1) and 155(2) of Cr.P.C. Reading of the complaints lodged in each case indicate that on receipt of information, the complainant informed the matter to his superior officer and thereafter made separate applications to the concerned Magistrate seeking necessary order for investigation into the allegations. But before securing the necessary “order”, the complainants in the above cases, rushed to the spot and commenced investigation even without registration of the FIR as mandated under Section 154 of Cr.P.C. There is nothing on record to show that the respondent has referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C. or obtained necessary order as envisaged under Section 155(2) of Cr.P.C. before embarking upon investigation. Thus, on the face of it, the respondents are seen to have committed blatant violation of the provisions of Sections 155(1) and 155(2) of Cr.P.C. 10. The learned HCGP appearing for the State, however, has tried to take shelter under the endorsement obtained by the respondents – Police on the applications wherein, the learned Magistrate is seen to have made an endorsement as “permitted”. It is argued that this is substantial compliance of the requirements laid down under section 155 of Cr.P.C. It is the submission of the learned HCGP that, in the decision referred to by the learned counsel for the petitioner, in Moin Basha Karnooli Vs. State of Karnataka ( 2014 (4) KCCR 3355 , as well as in Sharath @ Salim Vs. The State of Karnataka (Crl.P.No.101833/2015 & connected matters), the Investigating Officer failed to submit the necessary application and did not obtain any order from the concerned Magistrate and in that circumstance, this Court found it appropriate to quash the proceedings on the ground that the Police failed to comply with the mandatory requirements prescribed under Section 155(2) of Cr.P.C. In other words, the submission of the learned HCGP is that, in the instant case, by making necessary application to the concerned Magistrate, the respondents have substantially complied with the requirements of Section 155 of Cr.P.C. and therefore, there is no irregularity much less any illegality whatsoever in the action initiated by the respondents against the petitioners. 11. I am unable to accept the contention urged by the learned HCGP. This contention has already been considered by this Court in the case of Praveen B. Shivalli (supra). Even in the said case, endorsement was made by the learned Magistrate on the application submitted by the police as “permitted”. Considering the purport of the above provision and the purpose and object of prescribing such a pre-requisite, this Court in para 15 of the aforesaid judgment has observed as under: “15. Even in the said case, endorsement was made by the learned Magistrate on the application submitted by the police as “permitted”. Considering the purport of the above provision and the purpose and object of prescribing such a pre-requisite, this Court in para 15 of the aforesaid judgment has observed as under: “15. In the present case, 2nd respondent having acted contrary to sub-section (1) of Section 155 Cr.P.C. and the learned Magistrate having not passed ‘an order’, instead, having made an entry ‘permitted’, being not ‘an order’ in the eye of law and in view of the prohibition contained in sub-section (2) of S.155 Cr.P.C., the investigation; made and the consequential charge-sheet filed for the offences under Ss.504, 506 and 323 of IPC and the taking of cognizance of those offences and the issue of non-bailable warrant in the first instance itself for proceeding further with the case against the accused are absolutely illegal. It is obvious that the police and the Magistrate have not bothered to look into S.155 Cr.P.C. before proceeding further in the matter. Non application of mind and mechanical approach to the case are apparent.” 12. In view of the above factual and legal defects which amount to incurable illegalities and blatant violation of the mandatory requirements of law, all the above proceedings are liable to be quashed. 13. Resultantly, all the petitions are allowed. The FIRsz filed in all the above cases as detailed in the table hereinabove at para 6 and consequent proceedings arising there from are hereby quashed.